Monthly Archives: July 2015

Oklahoma Court Rejects Yet Another Flawed Challenge to the Proposed Clean Power Plan

rp_scales_of_justice.pngThe Clean Power Plan has now won a second round in court – before the U.S. Environmental Protection Agency (EPA) has finished writing it.

The federal district court for the Northern District of Oklahoma rejected another premature challenge on Friday to the proposed standards for carbon pollution from existing fossil fuel power plants.

The first – a challenge brought by Murray Energy Corporation and several states, including Oklahoma – was dismissed by the U.S. Court of Appeals for the D.C. Circuit just last month. In that decision, the D.C. Circuit court found petitioners’ attack on the Clean Power Plan was premature — relying on the plain text of the Clean Air Act, bedrock principles of administrative law, and (as the petitioners themselves acknowledged) the unbroken practice in the D.C. Circuit allowing challenges only to final agency actions.

This finality requirement is critically important to the integrity of the administrative process, ensuring the agency has an opportunity to consider and incorporate public input and that a reviewing court evaluates the agency’s final, carefully-determined course of action.

In last month’s decision, the D.C. Circuit noted that petitioners were “champing at the bit” to challenge the Clean Power Plan. True to form, the state of Oklahoma filed another challenge – pressing substantially similar claims to those already rejected by the D.C. Circuit, but this time seeking judicial review in Oklahoma federal district court.

If the challenges in the D.C. Circuit represented an attempted end run around the judicial review provisions of the Clean Air Act, then here the plaintiffs tried a double end run — adding to their flawed premature challenge by seeking judicial review in the wrong court.

The Clean Air Act provides that a challenge to any “standard of performance or requirement under section [111]” — which will include EPA’s Clean Power Plan, when finalized — must be filed in the D.C. Circuit. The Clean Air Act vests the D.C. Circuit with this authority to ensure uniform and consistent review of actions that apply nationally.

The Oklahoma federal district court made short work of the suit.

On Friday, the court firmly rejected the challenges – dismissing them on the basis of the plaintiffs’ brief alone, without even waiting for EPA’s response.

The Oklahoma federal district court decision both reaffirmed the courts’ authority to review only final agency actions, and identified the D.C. Circuit as the proper venue for challenging the Clean Power Plan, when it is finalized.

In the decision, written by Oklahoma federal district court Judge Claire Eagen, the court said:

The D.C. Circuit has already determined that the proposed emission standards are not a final agency action, and that court has denied a petition to review the proposed emission standards before they become a final rule. (Page 9)

The decision also says:

Even if the Court found that it would not be premature to exercise jurisdiction over this case, plaintiffs have failed to show that jurisdictional review provision of the CAA would permit this Court to exercise jurisdiction over the case . . . . The ultimate issue of whether the EPA has the authority to promulgate the disputed emission standards pursuant to § 7411(d) must be decided by the court with exclusive jurisdiction over these matters, and that court is the D.C. Circuit. (Page 9 – Emphasis Added)

Taken together, these decisions should give pause to litigants contemplating procedurally-flawed legal challenges — but unfortunately, Oklahoma is continuing to press these misguided claims in an appeal to the U.S. Court of Appeals for the Tenth Circuit. And these are just the latest in a series of legally-unfoundedattacks on these critical standards.

The health and environmental benefits of the Clean Power Plan could be profound. As EPA prepares for the inevitable legal challenges to come, it has a strong track record of defending the Clean Power Plan and other important clean air safeguards against legal attacks. That’s good news for the families and communities that are afflicted by carbon pollution from fossil fuel-fired power plants — the nation’s single largest source of this climate-destabilizing pollution.

Posted in Clean Power Plan, EPA litgation, News, Policy / Comments are closed

FERC, Grid Operator, Others File Supreme Court Briefs in Demand Response Case

Source: iStock

Source: iStock

The Federal Energy Regulatory Commission (FERC), a grid operator, states, and other parties just filed briefs with the U.S. Supreme Court in a case that could decide whether Americans have access to low-cost, clean and reliable electricity.

The case, EPSA v. FERC, revolves around demand response, a resource that helps keep prices low and the lights on – and does so while also being environmentally friendly.

In 2013, for example, demand response saved customers in the mid-Atlantic region close to 12 billion dollars. And during the polar vortex, which threatened the North-East with freezing cold in 2014, the resource helped prevent black-outs.

The clean energy rule at issue in this case is called FERC Order 745. EDF has been writing about this demand response case throughout the past year. We’ve been fighting for low-cost demand response and we’ll keep fighting in the Supreme Court.

History of the Case

The case involves a FERC rule that allows demand response – a low-cost, clean, and reliable energy conservation resource – the chance to compete fairly in our nation’s wholesale energy market.

EDF and a broad coalition of consumer advocates, environmental groups, companies, and industry organizations support it.

Demand Response – How It Works, Why It’s Popular

The broad support for demand response exists because of how the resource works.

Demand response reduces energy demand when power is needed most, rather than increasing supply from costly, carbon–emitting fuels. It relies on people and technology, not power plants, to affordably meet our country’s rising electricity needs. In so doing, it reduces costs for everyone by taking the place of very expensive generation.

Anyone in favor of cleaner, more reliable, lower-cost energy has a reason to support demand response.

What’s at Issue

FERC is the federal agency responsible for keeping our electricity rates “just and reasonable” (in other words, for making sure we get fairly priced electricity).

FERC created Order 745 to further that goal. Order 745 allows demand response access to the wholesale energy market, where electricity is bought and sold. It levels the playing field between demand response and traditional sources of electricity generation, like coal.

In doing so, demand response has been able to reduce our use of unneeded, costly electricity – the exact type of electricity that should be limited if one wants “just and reasonable” rates.

Electricity producers challenged FERC’s Order 745, arguing that the agency lacked jurisdiction to create it. A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit Court, in a split 2-to-1 decision, ruled in favor of the challengers.

Now FERC — as well as states, demand response providers, grid operators, and others – have stated their case to the Supreme Court.

The Case Before the Court

In its just-filed brief, the Solicitor General said on behalf of FERC:

Given that demand-response programs unquestionably confer significant benefits on wholesale markets, including lower rates, there is no defensible justification for concluding that the [Federal Power Act] nevertheless altogether excludes the programs from wholesale markets or FERC regulation. (FERC brief page 34)

The FERC brief also says:

By exercising authority over wholesale demand-response programs, FERC can ensure that a practice that occurs in wholesale markets, and has been widely recognized as tremendously important to the efficient functioning of those markets, will continue to provide benefits to consumers and the economy and is deployed in a way that results in just and reasonable wholesale rates and a reliable electricity system. (FERC brief page 45)

Another party to the case, demand response company EnerNOC, said in its brief:

Without demand response participation, wholesale energy markets will not ‘function…effectively’: Competition will be constrained; and prices will be higher. (EnerNOC brief page 39)

What Happens Next

Next, attention will turn to the amicus briefs – briefs filed in support of the parties to the case. Those, including EDF’s amicus brief, will be filed by July 16.

The Supreme Court is expected to hear oral arguments in the case this fall.

You can find all the briefs in the case here. And EDF will keep you updated as the case moves forward.

Posted in Economics, Energy, News, Policy / Comments are closed

The Mercury Standards, Post-Supreme Court – Still in Effect, Still Protecting Americans

rp_640px-Oblique_facade_2_US_Supreme_Court.jpg

Supreme Court of the United States

The U.S. Environmental Protection Agency (EPA) first proposed the Mercury and Air Toxics Standards back in 2011, at a news conference at Children’s Hospital with cheering children and families surrounding the speakers.

They were cheering because the Mercury Standards were the single most important clean air measure of our generation – designed to protect Americans from some of the worst, most dangerous types of air pollution.

They still are.

This week’s disappointing Supreme Court decision, remanding the standards back to the D.C. Circuit Court for further analysis, has distracted from that fact.

But the fact remains – the Mercury and Air Toxics Standards are a suite of life-saving protections against some of the most health-harming substances emitted by coal and oil-fired power plants, including mercury, arsenic and other heavy metals, and acid gases.

Here’s What Happened

Coal- and oil-fired power plants are by far the largest emitters of these pollutants, which are dangerous to human health even in small doses. Mercury causes brain damage in children, metal toxics like chromium and nickel cause cancer, and acid gases cause respiratory problems.

This week, the Supreme Court held that EPA should have considered the costs of regulation when it made a threshold determination under section 112 of the Clean Air Act that it is “appropriate and necessary” to move forward with the first-ever national limits for these noxious emissions. It is now up to EPA to determine the best way to respond to the decision.

(The case was Michigan v. EPA. EDF was a party to the case. You can read the decision and the sharp dissent here.)

What does the Supreme Court ruling mean for the Mercury Air Toxics Standards?

Here are three important things you should know.

First — there is every reason to believe EPA can quickly amend its “appropriate and necessary” finding to address the Supreme Court’s decision, without affecting the substance of the Mercury and Air Toxics Standards themselves.

Importantly, the Court left it up to EPA to determine how to evaluate costs and how to weigh those costs against the benefits of regulation. As the Court’s opinion acknowledged, EPA has already conducted an extensive review of both the costs and benefits of the Mercury and Air Toxics Standards as part of the regulatory analyses most agencies carry out under Executive Order 12866. That analysis contains overwhelming evidence showing that the benefits of MATS far outweigh its costs.

According to EPA, the monetized benefits of the Mercury and Air Toxics are expected to be up to $90 billion per year.

That amount reflects the enormous health benefits Americans will get from the standards. EPA estimates that they will prevent 11,000 premature deaths, up to 4,700 heart attacks, and up to 130,000 asthma attacks each year.

There are substantial and additional non-monetized benefits associated with reduced exposure to mercury and other harmful pollutants regulated by the Mercury and Air Toxics Standards.

Moreover, in spite of the power industry’s claims, reducing these emissions has proven much less expensive than initially projected. Major power companies such as AEP, NRG, and FirstEnergy have been reporting to their investors that the costs of the Mercury and Air Toxics Standards are as much as 70 percent lower than they first estimated.

The bottom line is that the Mercury and Air Toxics Standards are an extraordinarily beneficial public health measure and are providing healthier, longer lives for millions of Americans at a fraction of the costs predicted.

Second — the Mercury and Air Toxics Standards can and should continue to be implemented while EPA amends its “appropriate and necessary finding.”

The Supreme Court’s opinion did not prohibit the implementation of the Mercury and Air Toxics Standards – and in the past, the appellate courts have often allowed Clean Air Act regulations to remain in place while EPA amends them to address technical or legal issues.  

In this case, a large majority of American power plants are already in compliance with the Mercury and Air Toxics Standards — in many instances because they have been upgrading pollution controls to comply with state emission standards or other Clean Air Act requirements.  M.J. Bradley & Associates recently estimated that about 70 percent of the U.S. coal fleet had installed pollution controls to comply with the standards by the April 2015 deadline. In addition, a substantial number of plants have received one-year extensions to this compliance deadline and are now working to install pollution controls by April 2016.

Given the importance of the Mercury and Air Toxics Standards to public health, and the overwhelming likelihood that EPA will be able to quickly address the Court’s decision, there is no reason that power plants should be allowed to delay installing pollution controls or cease operating already-installed pollution controls.

Third – the Supreme Court decision has no adverse implications for EPA’s Clean Power Plan – despite the wild claims being made by some opponents of these vital limits on carbon pollution from power plants.

The Mercury and Air Toxics Standards and the Clean Power Plan are based on entirely separate Clean Air Act authorities that reside in separate parts of the statute. The authority EPA is acting on to develop the Clean Power Plan expressly provides for the consideration of costs, and EPA has carefully taken costs into account in the Clean Power Plan in the manner required by the statute. Thus, claims that the ruling on the Mercury and Air Toxics Standards should somehow cast doubt on the legality of the Clean Power Plan are severely misguided.

Summing It Up

Marian Burton, president of the American Academy of Pediatrics, summed it up perfectly back in 2011, when the Mercury and Air Toxics Standards were first proposed:

Dirty air makes children sick … If you think it’s an expensive process to put a scrubber on a smokestack, you should see how much it costs over a lifetime to treat a child with a preventable birth defect.

That’s why hundreds of thousands of Americans sent comments to EPA in support of the Mercury and Air Toxics Standards.

It’s why EDF and so many other health, environmental, and social justice groups will go back to the D.C. Circuit Court to defend the standards.

We’ll keep fighting to make sure the Mercury and Air Toxics Standards are fully implemented so we can realize the promise of the Clean Air Act — and make sure all Americans have safe, healthy air to breathe.

Posted in Clean Air Act, EPA litgation, Health, News, Policy / Comments are closed